[2020] FWC 6259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Benjamin Cross
v
Brisbane Broncos Rugby League Club Limited
(U2020/9020)

COMMISSIONER SPENCER

BRISBANE, 20 NOVEMBER 2020

Application for unfair dismissal remedy – jurisdictional objection – application filed out of time – s.394(3) extension of time sought – whether genuine redundancy – application dismissed.

INTRODUCTION

[1] On 1 July 2020, Mr Benjamin (Ben) Cross, (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act), alleging that the termination of his employment, (by way of redundancy) by the Brisbane Broncos Rugby League Club Limited (the Respondent/the employer/the Broncos) was harsh, unjust or unreasonable. The Respondent raised a jurisdictional objection pursuant to s.394(2)(a) of the Act, arguing that the Application was filed late on 1 July 2020, which was 74 days outside the 21-day statutory time limit.

[1] Mr Cross was employed as an Assistant Coach for the Broncos. He was one of three Assistant Coaches to the Head Coach, Mr Anthony Seibold. Primarily, the Applicant argued that he filed his application for unfair dismissal, when he learnt that another new coach was later engaged, in his role.

[2] It is agreed between the parties, that the Applicant’s employment was terminated, when his job was made redundant, with effect from 27 March 2020. The application was lodged 95 days after the termination of employment. This decision concerns whether the Commission should exercise the discretion to extend the time limit pursuant to s.394(3) of the Act. As part of this assessment, the Commission also provisionally examines the merits of the matter, as to whether it was a case of genuine redundancy.

[3] Considering this application has necessitated hearing detailed evidence, in relation to the merits of the redundancy decision (and the context of the decision, taken by the Broncos Rugby League Club to make the Applicant’s job redundant), and the later engagement of another coach. The Respondent stated that the redundancy decision was taken in response to the COVID-19 pandemic, at an early stage, at a time when the Broncos considered there may not be a National Rugby League (NRL) 2020 season at all. Within some eight weeks of the decision to make the Applicant’s job redundant, the season had been recommenced but in a different format without crowds given the COVID-19 response. ‘Project Apollo’ was implemented by the NRL, which meant that the Broncos operated with 32 players and 14 staff (including the 3 remaining coaches) in a “bubble”.

[4] The evidence was that at the same time, as this redundancy was considered, executives of the Broncos were in daily planning meetings regarding arrangements to meet the Broadcast agreement obligations and to continue the NRL 2020 season. The urgent efforts of the Australian Rugby League Commission, in this regard, were widely reported in the media.

[5] It was submitted, in evidence, that this redundancy, was a ‘business decision’, based on the Bronco’s need to reduce costs, and the selection of the Applicant was made on the recommendation of the then coach, Mr Anthony Seibold, to the General Manager of the Football Department, Mr Peter Nolan.

[6] Another 23 jobs (where duplication was found in the roles), were also made redundant. Whilst the Respondent’s documents in this matter were prepared and filed prior to Mr Seibold’s departure, he was not called by the Respondent as a witness.

[7] The evidence was that Mr Cross had been encouraged, prior to the season, by the 2020 coach, to join the Broncos. Mr Cross had sought assurances regarding ongoing employment, and on this basis, he relocated his young family and sold his family home.

[8] The clear evidence was, that there were no performance issues, raised by anyone in relation to the manner in which Mr Cross discharged his duties as an Assistant Coach for the Broncos. Mr Peter Nolan, (Head of the Broncos Football Department) stated in recognition, the Broncos had sponsored Mr Cross to undertake further coaching studies at the University of Queensland and he had also organised for him, to undertake additional training interstate, in the Next Coach program.

[9] Mr Cross was contracted to perform the Assistant Coach role until the end of the 2020 season. Given the redundancy was stated to be a “costs decision”, 1 the cost of his remaining contract was considered before the Commission. It was not challenged, that the Broncos Club, was one of the wealthiest clubs in the NRL. It was also raised in evidence, that across the NRL, no other direct coach had lost their job, as a result of the pandemic.

[10] The redundancy was argued to be a business decision and it is not for the Commission (unless such can be found to breach the statutory tests), to interfere with the decision of a business. 2 In examining this redundancy decision, it was confirmed that that the players and the games were the Club’s core business, but the major source of revenue was from ticket sales etc.

[11] It was set out at the Hearing that prior to Mr Cross’ job being made redundant, the Broncos had won their only two games of the season. Subsequent to Mr Cross’ job being made redundant, the then Head Coach Mr Seibold, complained to the Head of the Football Department, about his workload issues. Mr Nolan’s evidence at the Hearing, was that Mr Seibold, had been asked about the potential for this, prior to Mr Cross’ redundancy. Mr Seibold was not called by the Respondent to give evidence at the Hearing.

[12] As a result of the Head Coach’s ‘workload issues’, a separate decision was made to contract a consultant for two days per week. Given that Mr Cross had been in contact with the Club endeavouring to gain alternative forms of employment, Mr Nolan requested that Mr Seibold raise this matter, with Mr Cross. The evidence was that, Mr Siebold did not contact Mr Cross, and Mr Cross learnt of the engagement of this coaching consultant, from an article on the Broncos website, on 13 June 2020. It was this matter of the engagement of a further coach, that triggered the application for unfair dismissal, on the basis that his redundancy had not been genuine.

[13] At the time of Mr Cross’ job being made redundant, no clear consultation was undertaken with him, in regard to why he had been selected for redundancy and no genuine discussions occurred, for alternative employment or options to take unpaid or paid leave for a period. It was part of the evidence, that Ms Tain Drinkwater, General Manager, HR Risk and Compliance for the Respondent, later had such discussions with the Board, about employees taking leave. Mr Cross was not forewarned that his job would be made redundant, but was told of the redundancy in a 10 minute meeting, and that the decision was effective that day.

[14] It is noted that in this matter, the Respondent’s representative agreed (whilst not conceding that the redundancy was not genuine or that the dismissal was unfair), but that Mr Cross understandably, can be aggrieved:

“…True it is that Mr Cross is upset and perhaps legitimately so, that he was not contacted and given a courtesy call from Mr Seibold before hearing about it from friends who gave him a screen shot of a Broncos website. It is perfectly understandable that Mr Cross was upset, annoyed and indeed angry that had occurred. The Commission could well have sympathy for that proposition.” 3

[15] Whether a redundancy is genuine, first involves determining whether the person’s employer no longer required the person’s job to be performed by anyone due to changes in the operational requirements of the employer’s enterprise. The tests are set out later.

[16] The Counsel for the Applicant raised legitimate questions about the redundancy selection and process. Whilst the redundancy has occurred, the evidence was that Mr Cross should not be impacted by any professional, reputational damage in moving forward. It was a clear the decision that did not relate to his performance.

[17] Whilst matters of concern were raised with the redundancy decision, the legislative tests and case authorities on the grant of an extension of time, and genuine redundancy are clear; and the application of such are set out below.

[18] As one consideration of whether the redundancy was genuine, the later engagement of the coaching consultant, was undertaken on a different basis, of work on two days per week, on a contract, (rather than as a full-time employee). The merits of whether the redundancy was genuine, forms one consideration of the extension of time decision, and are set out later in the decision.

PROCEDURAL HISTORY OF THE MATTER

[19] The matter was subject to conciliation, but was not able to be resolved. Directions for the filing of material were subsequently issued. The Applicant filed an application for an Order for production of documents. The Order was granted.

[20] The Respondent filed copies of redacted and unredacted material in accordance with the Order for production of documents. The Respondent’s request for a Suppression Order was granted. This restricted access to the redacted version of the documents was provided to the solicitors for the Applicant, upon an undertaking by them to maintain the confidentiality of the material and to prohibit any publication of that material, (on the basis that the material was either commercially sensitive or contained personal information of employees of the Respondent other than the Applicant). The Suppression Order was issued pursuant to s.594(1)(c) of the Act. The Commission was provided with an unredacted copy of the documents.

[21] The matter was listed for Jurisdictional Hearing, in Brisbane, on 29 September 2020. The Hearing was subsequently adjourned at the request of the Applicant’s representative, due to emergent circumstances and was relisted for Hearing on 11 November 2020.

[22] The Applicant was represented by Mr Ross Cameron, of Counsel, instructed by Mr Ben Ryan, Solicitor of Hillhouse Legal Partners. The Respondent was represented by Mr Ian Humphreys, Partner and Mr Corey Curran, Lawyer, both of Ashurst Australia.

[23] Whilst not all the submissions and evidence are referred to in this decision, all of such have been considered.

BACKGROUND

[24] By way of further background, the Applicant was employed by the Respondent as an ‘Assistant Coach’ from the period of 3 December 2018 on a maximum term contract, to operate until the end of October 2020. The dismissal occurred on 27 March 2020. It was argued that the termination of the Applicant’s employment was brought about by way of a purported redundancy, as a result of the financial impact of the COVID-19 pandemic, on the Respondent’s operations.

[25] The Applicant primarily contended that the reason for the delay in filing the application, was that he was initially under the belief that the termination, was a genuine redundancy. The Applicant claimed that after he became aware, that the Respondent had hired a new ‘Skills Coach’, he had further reason to question the genuineness of his redundancy. The Applicant asserted that the ‘Skills Coach’ fulfilled the same role that he was performing, prior to his termination of employment. Once the Applicant became aware of this, he then engaged a law firm to provide advice and representation. He filed the application on 7 July 2020. It was agreed between the parties, that more than a week of this time period, between 13 June 2020 and the filing date, was devoted to discussions between the parties.

RELEVANT LEGISLATION

[26] Pursuant to s.394 of the Act:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

(emphasis added)

[27] Pursuant to s.385 of the Act:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[28] Relevantly, s.389 of the Act provides:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[29] It was submitted on behalf of the Applicant that the reasons for the delay in lodging his Application amounted to ‘exceptional circumstances’ pursuant to s.394(3) of the Act. The Applicant submitted that up until 13 June 2020, it was not possible for him to be aware that his termination was an unfair dismissal.

[30] The Applicant provided three witness statements in the matter, dated 16 July 2020, 21 August 2020 and a further statement dated 24 September 2020.

[31] The Applicant stated that his employment contract with the Respondent, did not contain a position description, in relation to his role within the Club. The Applicant has asserted that his assigned role was that of Assistant Coach, where he was responsible for working with the forwards and middle forwards on their contact; essentially, working as a skills coach to the forwards and middle forwards, doing both attack and defence work.

[32] The Applicant stated that he was one of three Assistant Coaches, working under the Head Coach, Mr Anthony Seibold. The Applicant further stated that he did not begin his employment with the Respondent as a defensive coach, rather, that he was employed as an overall skills coach for players. He stated he had discussions with Mr Seibold during the coaching “off season” between December 2019 and January 2020. Mr Seibold stated he wanted the Applicant to focus more on training the players in defence and defensive tactics, once training resumed in 2020. The Applicant did not query the change in his role, as he was still employed as an Assistant Coach, despite the refocus of his role. He later did question the alteration of his role.

[33] Shortly after the Applicant’s role was refocused, by the Head Coach the Applicant stated that the Respondent announced that they would be employing Mr Corey Parker, to work with the forwards. It was argued, on behalf of the Applicant that this was essentially filing the role, that the Applicant had previously occupied. The Applicant stated that he perceived his own role changed, as a narrowing of focus and did not see the change as negative or positive at the time. The Respondent referred to Mr Parker as a ‘craft coach’. Mr Parker was later not able to ‘join the bubble’, due to media commitments. 4 Mr Parker, did not provide evidence and is only mentioned, given the chronology of relevant events as presented to the Commission.

[34] In December 2019, the Applicant was sent to Melbourne to participate in the Next Coach Program, which the Applicant said Mr Seibold had attended during his career. The Broncos also enrolled him with the University of Queensland in a Graduate Certificate in Sports Coaching course, which started in 2020. The Applicant said he had completed his first semester in this course, but believed he could not complete the course, as his enrolment was conditional on the Broncos sponsoring him.

[35] The Applicant stated that this professional development investment by the Brisbane Broncos, indicated to him, that there was a long-term view of maintaining him, at the Club. He had considered his working relationship with Mr Seibold was strong. He had no reason to believe that he would not be staying with at the Club, for at least five years, particularly, as the Club knew that he had relocated permanently to Brisbane, with his family.

[36] In terms of the sequence of events leading to the redundancy, the Broncos won the two first games of the 2020 season, prior to the Covid suspension of the game. Shortly after the second game, played on 22 February 2020, a meeting was held, in the theatrette at the Club, by the General Manager, Mr Peter Nolan. The meeting was with all the immediate coaching staff, physical education staff, data analysts and sports scientists. At this meeting, the Applicant submitted that Mr Nolan said words to the effect that:

(a) the NRL were unsure what the outlook of the competition would be for the year;

(b) we would all have to be quite glad to be at the Brisbane Broncos because the Broncos are a financially strong club and were in a better financial position than other clubs; and

[37] The Respondent denied the statement regarding the security of jobs.

[38] On 24 March 2020, the Applicant received a letter from Ms Tain Drinkwater. She agreed in her evidence, that the letter was a template letter to all employees (although addressed individually) and that it did not convey to Mr Cross, that his job specifically, was under consideration for redundancy. The letter referred to the uncertainty of the period, and the matter of employees taking of leave, and set out the Applicant’s accrued annual leave was included, “for planning purposes”. This letter also generally called for ideas about redeployment, from employees. The letter set out a voluntary redundancy program for office based staff, which she later confirmed, did not include the Applicant’s job. The letter noted the reduction in fees of the Board members and the reduction in salaries of the executive, being undertaken. The letter set out below also enclosed a Q&A document, in relation to the Covid-19 outbreak:

“Dear Ben,

COVID-19 OUTBREAK AND YOUR EMPLOYMENT

We are facing challenging and uncertain times as a result of the COVID-19 outbreak and the decision of the National Rugby League (NRL) to suspend the 2020 NRL competition until further notice. These matters are outside of our control.

As you are aware. we have been working with the Federal Government and the NRL to implement measures to manage the implications of the decision by the Federal Government prohibiting all ·nonessential' public gatherings of more than 500 people.

We have been working through what these matters may mean for the business and. importantly. for our employees. In doing so, we have assumed that the effects of the COVID-19 outbreak will be long-standing and far-reaching, not just on the NRL but also the broader community.

We have some tough decisions to make if the Brisbane Broncos is to survive in the future.

Based on current information and business forecasts, including the lack of useful work available, we cannot continue to operate at the current staffing levels and remain viable. We are undertaking a full review of all aspects of our business in an effort to protect the long-term future sustainability of the Club. This review will result in significant changes to the structure of our business. which will include a number of positions becoming redundant.

We will continue to be guided by the advice of the Federal Government, however we do want to be transparent and work with our staff as best we can during this period of uncertainty.

In addition to the Board taking a 50% reduction in Directors fees, myself, the Executive team and senior staff across the business have also agreed to take a 20% reduction in our salaries. We will now also implement the following measures:

• A Voluntary Redundancy program for all office-based staff will be opened from today until Friday 27 March 2020. Applications will be considered on a case by case basis and assessed against the operational requirements of the business. Should we not achieve the required reduction in our staffing levels, unfortunately there may be the requirement to implement a forced redundancy program.

• Access to the Clive Berghofer Centre will continue to be restricted until further notice. To assist in maintaining business continuity, there will continue to be a limited number of staff who are able to work from home. This will be limited to essential, business critical services only. Your manager will advise you if you are required to continue working.

• From 30 March 2020 we will be requesting all office-based staff and non-essential football staff to access their normal accrued leave or to take leave in advance.

(emphasis added)

o Individuals can utilise either Annual Leave or Long Service Leave provisions. Where permitted by law, we will also allow for this leave to be taken at half pay on request. Leave applications will be granted where you have enough leave accrued and, in the case of LSL, are eligible to toke the leave.

o If you do not have accrued annual leave or LSL we will consider an application for you to take annual leave in advance of accruing those entitlements up to a maximum of four weeks.

o Approval of any application for annual leave to be taken in advance will be subject to you agreeing that if your employment ceases prior to your accruing the equivalent of the leave taken in advance, the value of the annual leave entitlements not yet accrued will be deducted from your final monies.

For your planning purposes. your current leave balances are: Annual Leave Days | 8.33

As the situation continues to evolve we will continue to adapt our strategy. This is one of what is likely to be a number of steps taken in seeking to best ensure the future of the business.

For roles that will become redundant. over the next few days we will continue to identify any alternate redeployment opportunities, or where alternate roles are not possible. finalise redundancy arrangements.

Please see the attached Q&A document providing further information about the process that will be undertaken.

If anyone has any ideas. thoughts or suggestions that you would wish us to consider as we progress through this difficult time please contact Tain Drinkwater. so that we may be able to consider them. (emphasis added)

We will continue to monitor carefully the situation relating to COVID-19 and assess its impact on the business and our employees. If there ore any changes. you will be advised as soon as possible. Please ensure that your contact details are up to date.

We acknowledge this is a difficult time for you and your family and encourage you to access the employee assistance program. This service will remain available for you and your families to access throughout this process.

Please contact your department manager if you have any questions, or if you wish to discuss any other ways in which we can reasonably support and assist you at this time.

Yours sincerely

Paul White

Chief Executive Officer”

[39] The Applicant stated that following this letter, on or about 26 March 2020, the night before a final meeting was scheduled to be held with all staff, Mr Seibold had arranged for a brief teleconference with the Applicant, Mr Richards, and Mr Gentle (the coaching staff). The Applicant missed the call from Mr Seibold, but later called him back. The Applicant stated Mr Seibold said, words to the effect that, he could not say if the Applicant would be losing his job tomorrow, he wanted to let the Applicant know that some conversations would be happening the next day, in relation to the Applicant’s employment.

[40] On 27 March 2020 the Applicant attended a meeting with Mr Nolan, with all players and performance staff (no administration staff were in attendance). The Applicant stated that Mr Nolan said words to the effect that the Respondent, ‘would be losing some good people to the organisation today’.

[41] The Applicant stated that, immediately following this meeting, Mr Nolan and Mr Seibold scheduled individual 15-minute meetings with all staff who were being made redundant. The Applicant at this stage, also learned that his job was being made redundant, in such a meeting with them.

[42] During his meeting with Mr Seibold and Mr Nolan, the Applicant stated that Mr Nolan said words to the effect that the ‘hiatus’ (Mr Nolan denied using that word) to the NRL season had caused the Club financial hardship and to ensure the longevity of the Club some positions, would be made redundant. Mr Nolan told the Applicant, that the Club could not access JobKeeper support, because of the strong financial position that the Club has maintained, and the Applicant’s position with the Respondent would no longer exist in any capacity, due to the Respondent having to cut back on staff and they would be making the Applicant’s position redundant.

[43] The Applicant stated that at no time during the meeting with Mr Nolan and Mr Seibold, did they discuss any alternatives to the redundancy, or ways to mitigate its effect, by work with affiliated clubs, or any options in relation to being stood down, leave with or without pay, any ability to work part time for the Respondent, or any ability to be engaged by the Respondent, as a contractor, or set out, in any form.

[44] The Applicant stated that at no time prior to the meeting was there any consultation regarding his redundancy. Nothing further was discussed at the 27 March 2020 meeting, which was about 10 minutes in duration. The Applicant left the Respondent’s premises, immediately following the meeting.

[45] On 27 March at 4:25pm, Mr Nolan sent email correspondence to the Applicant regarding the redundancy which read:

“Ben,

Following our recent meetings and conversations, please find attached the relevant documents as part of your redundancy. I acknowledge this is an exceptionally difficult time, and I cannot emphasise enough that we want to support you as best we can through this process. On a personal note I sincerely hope that you are ok, you have been a great support to me and your commitment to the Club and the players and staff will never ever be questioned.

Please contact our Employer Assistance provider or (redacted) if you would like some support. If you have any questions in relation to your redundancy information, please contact Tain or (redacted).

I wish you all the best for the future and have genuinely enjoyed working with you, you always will be a great mate!

Take care and stay safe

Pete”

[46] Attached to the email was the below letter from the CEO of the Broncos, Mr White, which indicated in contrast that the redundancy was effective from 10 April 2020, (which would have had relevance for the 21 day period, if the Applicant has filed an application at that time):

“Dear Ben

Notification of Redundancy

Following notification provided to you on 24- March 2020. we have implemented a number of strategies to protect the long-term future sustainability of the Club, which has included a review of our business structure.

From the result of this review it is with regret that we advise that your position will be made redundant. We have explored whether there are other suitable positions for you perform. however unfortunately no such positions are currently available.

As such, it is with regret that we advise that your employment is to be terminated on the grounds of redundancy of your position. In accordance with the Fair Work Act, you are entitled to a notice period of two weeks, which means your redundancy will be effective from 10 April 2020. You will not be required to present for work during this notice period.

Your redundancy payment will be inclusive of the required notice provisions. together with any accrued and remaining leave entitlements. You will also be entitled to a redundancy payment in accordance with the National Employment Standards. The details of your estimated total termination payment are attached.

Decisions such as these are never easy, particularly given the current circumstances. We acknowledge this is a difficult time for you and your family, and encourage you to access the employee assistance program. We wish you the best in your future endeavours.

Your sincerely

Paul White

Chief Executive Officer”

[47] A calculation of the Applicant’s redundancy and termination entitlements, and documentation such as information on how to access rental assistance, the employer assistance program, and a termination of service – redundancy checklist (which included items for the Applicant and various departments of the Respondent to action, such as removing IT access, returning company property, and providing a forwarding address details).

[48] The Applicant asserted that since his purported redundancy, he had spoken with several members in the NRL coaching staff and was led to believe that he was the only coaching staff member, in the entirety of the NRL to have lost their position, in the pandemic. This was not challenged.

[49] The Applicant later sent an email to Mr Nolan on 15 May 2020, outlining his thoughts on possible other options of being redeployed within the Respondent’s organisation:

“Hi Peter I hope your well,

Mate before I get to my main point I'll ask again if there's an opportunity to come back anytime soon if things financially tum around please consider myself.

Move forward for 2021 and aligning myself to a Q Cup side do you have any thoughts for myself and opportunities to initially be an assistant coach if clubs are keep their HC structure the same for next year because this year has been written off for them or do you know where there maybe an option as HC with a Cup team next year.

Obviously you'd like me to coach Redcliffe hahaha, but just looking around the league and with Broncos affiliation with Norths, Wynumm, Souths and Recliffe I'd like to position myself where I would be utilised to my full ability and to the full benefit to the Broncos.

I would ideally like to work with 1 of these 4 teams with my relationship with the Broncos and you have a clearer indication off what's going on in Qcup Brisbane than I do so if you hear of any movements or adjustments and needs at these clubs please let me know your thoughts and suggestions mate.

I hope things are well and everyone is well prepared for the re-start May 28^th.

I can't say I agree with the change in 1 ref and ruck 6 again rule as there has been enough changes and interruptions already this year but that's the powers to be decision.

Talk soon

Crossy”

[50] Mr Nolan provided a response to this email on 19 May 2020, stating:

“Crossy

Thanks for the email mate and I hope you and the family are well?

We will always consider you for employment here Crossy- you were and always will be a valued member of the Club. Unfortunately in the short term there doesn't appear to me much opportunity for that to happen, but you would always be considered if that ever changed.

(emphasis added)

From a Q Cup perspective, we still haven't formally decided on what our future looks like from an Affiliate Club perspective. I am still to meet with one of our Affiliate Clubs to continue these discussions. The only area I am certain of is that there will be no funding available from the Broncos for those programs in the future and that it is highly likely we will only be involved with one Club in a “nuclear model” rather than the “multi club” program that existed in the past.

It would be unprofessional of me to say what that will look like until I meet with Seibs and the Board to gain their approval on what direction that will be. As our entire focus in recent months has been on getting the team back on the field at NRL level we will be looking at a June or July decision on what our Affiliate Model will be in 2021 and beyond. I will let you know that ASAP once that decision is made.

I hope that is of some assistance to you Crossy

Thanks mate and please stay in touch

Pete”

[51] The Applicant stated that he did not pursue the matter further following receipt of the above response from Mr Nolan, expecting a further response as set out.

[52] The Applicant stated that on Saturday 13 June 2020 he received two text messages from friends with a “screenshot” of an announcement by the Brisbane Broncos that Mr Ryan was being employed as a skills coach on and from that date. He formed the view from that article, that Mr Peter Ryan would be working in his previous role. The article set out:

“Former Broncos forward Peter Ryan has been welcomed back to the club as Skills Coach for the remainder of the 2020 season.

Ryan, a multiple Premiership winner in 147 games with the Broncos, will work with all players across the NRL squad.

Renowned for his tough and uncompromising tackling technique, Ryan most recently was an Assistant Coach of the Queensland Reds for the 2019 season.

Broncos Coach Anthony Seibold said: "Pete is an old boy of the club and has experienced premiership success here as both a player and a coach.

"Whilst Corey Parker will continue his role with the Forwards from outside of our COVID bubble due to his media work until restrictions are lifted, we saw this as a good opportunity to get 'Rhino' back to the Broncos and to work hands on with our group. He will bring a wealth of experience and will work with all players across the squad and as someone who knows our club inside and out he is a great fit”

[53] On the same day, the Applicant sent a text message to the General Manager of the Broncos, Mr Peter Nolan, about the article, saying “How should I be handling this Peter, l've been fielding calls from family, friends and media.”

[54] Mr Nolan responded “Crossy- I just have the grand kids here tonight mate. I will call you in the morning. I thought Seibs was calling you as well? I will call tomorrow morning.”

[55] The Applicant responded, saying “Extremely disappointing to see it posted on
Facebook before hearing from you or Anthony.”

[56] The Applicant emailed the Broncos’ Human Resources Manager, Ms Tain Drinkwater, the same day as the article on 13 June 2020, about Mr Ryan's appointment:

“Hi Tain I hope your well,

I have read and was sent this today regarding the hiring of Peter Ryan at the Broncos, I was made redundant as my role was no longer necessary in my field of ruck forward defence and tackling technical coach.

I offered my services at a reduced contract and at any capacity to the club.

I’d be very disappointed in the Broncos organisation if my former position has been replaced by Ryan after myself being made redundant due to Covid-19.

I would like a response at your earliest please to see where my position stands.

Thank you.

Kind regards

Ben Cross”

[57] An email in response was sent by Ms Drinkwater on 16 June 2020 which stated:

“Hi Ben

I apologise in the delay of my response, I had a couple of days leave and didn't have access to emails. I understand that subsequent to your email you have spoken to both Pete Nolan and Anthony.

As you are aware, given the Government's decision to restrict events and the subsequent impact on the NRL competition, the impact on our Club was expected to be significant and we needed to identify cost savings and gain efficiencies to ensure the future of the club.

I can assure you that the decisions taken to make a substantial number of positions redundant was not taken lightly. A full review of all parts of the business was undertaken and we looked at options to redeploy people where we could, however where we were unable to do so it was unfortunately necessary that a number of positions were no longer required.

I am disappointed that this has been played out in a public forum and acknowledge that you are disappointed. Peter Ryan has not been engaged to replace you in your previous position, however given our performance since the start of the revised season, we will be utilising his services on a short term basis. This is not dissimilar to any of the other arrangements we have in place during the season to utilise external services.

I wish you, (redacted) and the family well in your future endeavours.

Tain”

[58] On 14 June 2020, the Applicant submitted that he spoke with some friends, who told him that there were some legal avenues available to him in relation to the Respondent's conduct. As neither he nor his wife were from Brisbane, the Applicant said he did not know who to talk to, and said his wife asked a co-worker who referred him to Mr Robert Lamb at Hillhouse Legal Partners (HLP). On 15 June 2020 the Applicant spoke with Mr Lamb and engaged HLP to act on his behalf.

[59] It was submitted that in the period between 16 June 2020 and 24 June 2020, the Applicant, with his lawyers, attempted to resolve the matter, with the Respondent, and their lawyers. The Applicant set out, that time then had to be allowed, for instructions to be taken and the application filed. The Applicant filed his application on 1 July 2020. It was noted by his representative, that the application was filed within 21 days from the time, he became aware of Mr Ryan’s appointment (i.e. 13 June 2020). The Respondent conceded that eight days of this time were spent in discussions with them, regarding Mr Cross’s termination of employment. The Applicant had been endeavouring to resolve the matter.

[60] The Applicant’s lawyers referred to the decision of May v SBG Administration Services Pty Ltd T/A Blueprint Homes Pty Ltd, 5 on the basis that the circumstances were similar, in that the role performed by Mr Ryan, was substantially the same role, as the Applicant’s position. The decision of May considered other case authorities, in which the applicants had become aware of recruitment into roles, where an employee had been made redundant from a substantially similar role, (after the expiration of the 21 day period for filing an unfair dismissal application). In May at [42], a distinction was drawn between her role that had been made redundant and the nature of the new role that had been recruited for. That case set out:

“[40] It is appropriate at this point to consider some other cases that have dealt with analogous circumstances. I refer firstly to Williams v The Building Connection Group P/L which was relied on by the Applicant. In that case, Ms Williams was made redundant and some 3 months later became aware that her former employer was advertising for a position that was substantially the same as Ms William’s former position. The Respondent did not contest the Applicant’s contention that there were exceptional circumstances. The timely application by the Applicant where the particular new information had emerged was considered by Commissioner Wilson as weighing in favour of “exceptional circumstances”.

[41] In Bananacoast Community Credit Union, Deputy President Sams similarly considered whether emerging information regarding the recruitment of roles substantially the same as three retrenched roles would weigh in favour of “exceptional circumstances” that would justify an extension of time. In that matter, the Deputy President was satisfied that the particular circumstances may constitute “exceptional circumstances”.

[42] In each of the cases referred to above, it was significant that the roles that were recruited shortly after employees were made redundant were substantially the same as the roles formerly filled by the retrenched employees. Those circumstances are clearly distinguishable from that of the present matter where the Sketch Designer role that was recruited some 4 months later was a more junior role and where the Applicant’s former supervisor role duties had been reallocated across the remaining team members.”

[61] The Applicant’s representative set out, the circumstances of the Applicant met the statutory test of exceptional circumstances. It was also argued on behalf of the Applicant that the Respondent would not suffer any prejudice if the extension of time for this Application was granted. It was submitted that the length of delay, was not significant enough to give rise to a general presumption of prejudice.

Applicant’s witness statements

[62] On June 14, 2020 the Applicant spoke with Mr Nolan, who he said was apologetic that the Applicant found out about Mr Ryan's engagement the way that he had. Mr Nolan stated he had told Mr Seibold that he needed to call the Applicant regarding Mr Ryan's appointment, and he was disappointed that Mr Seibold didn't call the Applicant, as requested and that Mr Nolan had to receive the call from the Applicant, regarding the matter.

[63] The Applicant stated that during this conversation, Mr Nolan did not tell the Applicant, the reasoning behind Mr Ryan’s appointment.

[64] On 14 June 2020 at approximately 3:30 pm, after speaking with Mr Nolan, the Applicant received a call from Mr Seibold, who said to the Applicant, words to the effect that:

(a) … had mentioned to Mr Seibold that Mr Ryan had been made redundant from the Queensland Reds and that Mr Ryan was looking for work;

(b) After the Applicant had left the Club, the team suffered three disastrous defensive games;

(c) the Broncos needed someone to come in two days a week to do some work on defence and wrestling skills; and assist on game day with another set of hands; and

(d) the Broncos needed someone to come in to the "NRL Covid bubble" and assist in the hands-on coaching. 6

[65] The Applicant said he told Mr Seibold the engagement of Mr Ryan was a role that he could have done and is a role that the Applicant used to perform. Further Mr Ryan and the Applicant were both outside of the ‘NRL COVID bubble’ and both would have had to go through the same quarantine period, in order to coach the players.

[66] The Applicant asserted that Mr Seibold did not deny these statements. The Applicant further stated, that at no time during his conversation with Mr Seibold, did Mr Seibold explain why he didn’t contact the Applicant to come back and resume his role, at least in some capacity.

[67] On 15 June 2020, the Applicant spoke with, and engaged lawyers, to act on his behalf.

[68] The Applicant submitted that he commenced proceedings against the Respondent when he became aware that his position had been replaced by Mr Ryan and that his redundancy was not a genuine redundancy. The Applicant stated that, he first tried to resolve the issues, given the promises that had been made about returning to work if it was available.

[69] Prior to filing his application, the Applicant stated he instructed his legal representatives to approach the Respondent, in order to try and resolve the matter.

[70] It was contended on behalf of the Applicant, that any delay in commencing his proceedings, was caused by the Respondent’s failure with the redundancy process, and then failing to consult with the Applicant, about being re-engaged by the Respondent in some coaching capacity.

[71] The Applicant asserted that at no time was he offered the part-time position, performing the role that Mr Ryan, came to perform. The Applicant stated, that if he had been offered this part time role, he would have accepted the position.

Mr Ryan’s Position within the Respondent

[72] An ASIC company extract for Ryno TT, was submitted, that showed that Ryno TT, was not an incorporated association, rather, it was the registered business name, that Mr Ryan used to conduct his services.

[73] A copy of Mr Ryan’s LinkedIn profile, was referred to, to demonstrate the similar nature of the work being performed by Mr Ryan:

(a) Mr Ryan is a "Defence Coach/Tackle Technique Specialist";
(b) Mr Ryan is working for the Broncos as a "Tackle Technique and Defence advisor''; and
(c) Mr Ryan previously worked for the Flying Fijians as the Defence Coach; Queensland Reds as the Defence Coach; and Brumbies Rugby as Defence Coach.

[74] In highlighting the similarity of the duties, Mr Ryan's LinkedIn ‘experience’ listed the business of RYNO Tackle Tech with the description of:

"Specialist skills coach looking at teaching safe, efficient and effective tackle technique across a number of contact sports. Rugby, rugby league, American football, AFL.

In having direct communication with renowned Sports Scientist Dr Tim Gabbett and looking at efficiency in tackle technique from a biomechanics point of view I have developed a criteria to gauge player tackle tech. Through this, strengths and weaknesses arise and strategies put in place to improve each individual.

It is my view that good Team Defense comes from attitude. Attitude to me is every individual buying into the team defense plan and working hard for the persons next to you.

If I can impart one small piece of information regarding tackle technique here. I will give an example of how small e ti effort gets big gains. At the start of 2015 I chose several players at the Brumbies to do extra tackles after every on field training session. The tackles were not full contact. The focus was about each individual improving small components of their tackle tech. Foot speed into contact, body shape upon contact, tracking etc. I took a tally of each individual contacts and by season start these players had completed 450+ extra specific skill contacts than they would in the standard preseason. The players chosen were some of the better defenders for the Brumbies in a record breaking defensive season. As I said small extra effort gets big gains."

[75] The Respondent, in response, conveyed that Mr Ryan was not an employee, (as the Applicant had been) rather that he was an independent contractor, who performed the role of a skills coach. The Applicant’s lawyer disputed this categorisation of Mr Ryan’s role, and stated that Mr Ryan performed the following roles:

(i) Mr Ryan has uploaded videos on Linkedln of him coaching tackle technique to the Brisbane Broncos.

(ii) Mr Ryan is holding the hit shields doing the step-in warm-ups which is a game day warm up that the Applicant used to perform;

(iii) Mr Ryan talks about the Brisbane Broncos defence and engages with people about those defensive skills. Mr Ryan says that he had only just come on board to strengthen their defence.

(iv) Mr Ryan was also watching other team's reels which is the role of an assistant coach, he was observing the other teams for the upcoming games and that is a role of what the assistant coach does.

[76] It was argued that whilst the Applicant was employed by the Respondent, his role was to:

i) Review players defensive performance in the previous week;

ii) Preview the upcoming oppositions attacking threats and trends;

iii) Review training footage of the players defensive components of the game and making corrections;

iv) Preview and implement defensive strategies to negate oppositions attacking play for the upcoming weeks. Previewing would be watching the opposition games with the players directly and addressing the trends of what they do and then implementing strategies to negate their attack.

v) Review our playing and training defensive tactics for improvements individually and collectively.

[77] It was argued that the technique and skills coaching that Mr Ryan trained the players in, are defensive skills and techniques, that were part of the Applicant’s role when he was employed by the Respondent. The Applicant asserted that Mr Ryan had replaced him by taking on roles he had previously undertaken, at the Club.

[78] The Applicant’s case stated that he understood the role undertaken by Mr Ryan to be his own role under a different title and, had he been consulted in relation to that position, being available as a contractor, he would have accepted that offer, (as he stated he had previously offered in his email of 15 May 2020). The Applicant set out that at all times following his redundancy, he was available to work for the Club. He stated that if the Respondent or its representatives had approached him at any time after 23 March 2020 to undertake the role Mr Ryan now performs, he would have been able to perform the role and would have done so.

[79] The Applicant’s representative stated that following the Applicant’s redundancy, the Club had suffered 12 straight losses.

[80] The Applicant’s Counsel argued that the relevant test for determining whether an employee’s job ceased to exist was set out in Dibb v Commissioner of Taxation 7, where the court found that this required an assessment of whether the employee’s “job (described by the duties attached to it) … no longer required to be performed by any employee of the employer”. It was asserted that in this case there was no mere reassignment of the tasks and duties undertaken by the Applicant to existing employees, but a requirement for his role to be undertaken.

[81] The redundancy test was considered in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt 8 which established that the test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form. In Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488, the Full Bench considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 and said:

“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)”

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.”

[82] The following exchange between Mr Nolan and Mr Cameron, (Counsel for the Applicant) demonstrated Mr Nolan’s belief that Mr Seibold would contact the Applicant in relation to the part time defensive/skills contracted coaching role that had been required:

“The reality from your perspective was Mr Cross could have done that work. He could have been re-employed, couldn't he, by the club?---I suggested to Mr Seibold when he motioned the role to me, "Could Ben do that role?" My first suggestion was to speak with Ben.

Yes?---He said that he wasn't suited to that role. I said - I don't mind saying this now - I said, "Well, you need to at least call him and talk to him about the role."

Right?---I had that conversation with him. For the specifics of the role - I hope you don't mind me saying - that's for Mr Seibold, it's not for me.

THE COMMISSIONER: But your understanding is Mr Seibold didn't call him? You learned that later?---I found that out from Ben, yes.

MR CAMERON: So it would be fair to say whilst you were the head of the football department, the decisions about - to make Mr Cross redundant and whether he could be re-employed, they weren't for you to make. They were either Mr White or Mr Seibold?---The decision - the second decision about the Peter Ryan role - wasn't anything to do with Ben being replaced. It was what Anthony wanted at the time in that coaching role. The decision for Ben, when he was made redundant, was made in conjunction with Mr Seibold about how the football department functioned at the time, given our situation.

The reality of course was, from your perspective, it was obvious, wasn't it, sir, that the club needed someone who could coach - who could provide defensive - take on a defensive coaching role? Mr Seibold couldn't do it, the club was losing games, wasn't it?---Well, it's hard to disagree with that.

…

MR CAMERON: Mr Seibold, to your knowledge, once the competition resumed, he couldn't do all the work, could he?---Not after Mr Parker had left, no.

He needed someone in the defensive coaching role?---He was struggling with the workload.

He needed someone who could coach in the defensive role?---That's fair to say, yes.” 9

[83] A central part of the case on behalf of the Applicant, was that the decision to make the Applicant’s job redundant was unnecessary, and further, the failure to offer him the further role was unfair.

[84] It was also submitted, that at the time, the decision was made, to make the Applicant’s job redundant, there was a lack of consultation, this demonstrated that the redundancy was not genuine. Further, it was contended that the Applicant’s job did not cease to exist. His lawyers argued that others were recruited to fulfil the duties and tasks and that these overall facts met the ‘exceptional circumstances’ test.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[85] The Respondent submitted that there were no ‘exceptional circumstances’ or relevant factors that would satisfy the granting of an extension of time, in terms of the criteria set out in s.394(3) of the Act. Further, the Respondent submitted that the Commission should not exercise its discretion, to grant the extension of time, having regard to all of the circumstances.

[86] The Respondent relied on the witness evidence of Ms Tain Drinkwater, General Manager for Human Resources, Risk and Compliance, and Mr Peter Nolan, General Manager for the Football Department.

Evidence of Ms Tain Drinkwater

[87] Ms Drinkwater provided two witness statements in the matter, dated 24 July 2020 and 10 September 20020. She gave evidence that prior to the suspension of the NLR 2020 season, she was responsible for assisting the Respondent with undertaking ‘workplace planning scenarios’, to respond to the COVID-19 pandemic. This included a consideration of implementing a voluntary redundancy program for employees. She later confirmed this was only for office staff. Essential football staff were a separate category.

[88] Ms Drinkwater said that on the weekend of 21 March 2020, she was advised that the NRL competition was likely to be suspended due to the Covid-19 pandemic, and began planning for such, with the CEO. The competition was then suspended on 23 March 2020 by the Australian Rugby League Commission as a result of advice from Federal Government health officials and biosecurity experts. Ms Drinkwater said the suspension was completely unprecedented, and at the time, it was unknown how long the season would be suspended.

[89] Ms Drinkwater stated that the Respondent anticipated a 6 to 12 month business impact which would affect all areas of operations, and as a result of the forecasted business impact, she worked with all department heads to review resourcing requirements; to identify resource cost savings and gain efficiencies, to ensure the long-term future of the Club. She said she reviewed every department to assess the 6 to 12 month impact, including assessing structure and staffing, with a view to redeploy staff where possible.

[90] Ms Drinkwater said the review found that based on current information and business forecasts, including the lack of useful work available, the Respondent could not continue to operate at the current staffing levels and remain viable given the anticipated long term impact the suspension would have, on the Respondent’s business.

[91] Ms Drinkwater said that the CEO, emailed the Applicant, a general letter on 24 March 2020, advising that the Respondent was reviewing the business, in order to protect the long-term future of the Club. The email also advised that a forced redundancy program may be necessary and provided a general invitation to contact Ms Drinkwater if staff had any suggestions on handling the situation. The correspondence did not specifically convey that the Applicant’s job was being made redundant. This correspondence of 24 March 2020 included his level of accrued annual leave (being 8 days) and that employees would be asked to take that.

[92] At the hearing, Ms Drinkwater conceded the letter was a general uniform letter provided to all staff and did not contain specific reference to the Applicant’s role being at risk:

“Is that effectively a template letter that all coaches or all staff received but their individual name was put into that letter and their specific accrued annual leave?---That's correct.

Would you agree in that letter that it wasn't specifically addressed to Mr Cross that his job was being considered for redundancy?---Yes, correct; it wasn't specifically referenced that his role would be subject to redundancy but it does reference that we would look at all roles.” 10

[93] On 26 March 2020, the Respondent decided that 23 positions were not required to be undertaken by anyone, including seven in the football department. This included the Applicant’s position. Ms Drinkwater said that contractors, were also advised that their services were no longer required.

[94] Ms Drinkwater gave evidence that the Applicant was advised of his redundancy (in a meeting on 27 March 2020), by Mr Peter Nolan and Mr Anthony Seibold. She stated that she was later copied into an email, that provided the Applicant with his notification of redundancy and redundancy package. Ms Drinkwater said the Applicant was paid 4 weeks’ redundancy pay and four weeks’ wages in lieu of notice, despite the fact the Applicant was only entitled to two weeks’ notice.

[95] Ms Drinkwater said that, there is still no requirement for the Applicant’s coaching position. Her evidence was that at the time of the Applicant’s redundancy, there was no intention by the Respondent, to engage any additional coaching staff, including Mr Peter Ryan.

[96] Ms Drinkwater said that on or about 28 April 2020, she was informed that the NRL 2020 season may recommence on 28 May 2020, and that this in fact occurred. Ms Drinkwater said that as a result of the team's performances in rounds 3 and 4 of the competition, on 10 June

2020, the decision was made to engage Peter Ryan (as a contractor through Ryan TT) as a skills coach, two days per week. Her evidence was that Mr Ryan is in no way a direct replacement of the Applicant's role, and that Mr Ryan only performs one aspect of the role previously performed by the Applicant.

Evidence of Mr Peter Nolan

[97] Mr Nolan accepted the evidence in relation to the Applicant’s role as Assistant Coach, that there were no performance issues. Mr Nolan said that over the course of the week beginning 16 March 2020, he had a number of discussions with Ms Drinkwater regarding resourcing and operations, of the Football Department, and that the review was because of the ‘dire financial situation’ of the Respondent due to the COVID-19 pandemic. It was put to him by the Applicant’s lawyers that the Broncos (a publicly listed company) was considered to be in a strong financial position.

[98] During the review, Mr Nolan said he and Ms Drinkwater determined that there was duplication in a number of roles in the Football Department, including coaching. Mr Nolan said he immediately met with Mr Seibold to inform him of the current situation, and Mr Seibold agreed that there was some duplication in roles. Mr Nolan said he asked Mr Seibold to assist with the decision-making process of possibly reducing staffing levels, and that Mr Nolan wanted to know from Mr Seibold what impact staffing changes would have on the day to day running of the Football Department.

[99] Mr Nolan said that due to the suspension of the 2020 NRL season and the financial impact on the Respondent as a result of COVID-19, it was decided with Mr Seibold's direction that there was no need for three assistant NRL coaches, and the decision was made to make the Applicant’s position redundant. He stated that the Applicant was selected for redundancy as he was the least experienced Assistant Coach. The basis for the Applicant’s selection was not conveyed to the Applicant, nor were any measures to avert the redundancy discussed.

[100] Given that as a result of COVID-19, no football was being played, and may not have been played for the rest of the year, the Respondent considered it did not need anyone to undertake some of the duties performed by the Applicant, (such as to preview upcoming opposition attacking threats and trends; preview and implement defensive strategies to negate opposition attacking play for upcoming weeks; identify trends of opposition attacking plays and implement strategies to negate their attack; and review the team's playing tactics for improvements individually and collectively). These were assessed as the core tasks performed by the Applicant, and it was considered that they did not need to be performed, and any review of defensive technique for any player, could be done by Mr Seibold.

[101] Mr Nolan said that due to the economic environment, he could not find the Applicant another position. The evidence does not set out whether it was considered, that his job could have been undertaken on a part time basis, or for reduced payment.

[102] Mr Nolan agreed that there was a meeting with members of his department, in early to mid March, and said that this was called, as at the time, the rugby league season was facing a lot of uncertainty as a result of COVID-19. Mr Nolan denied that at the meeting of 20 March 2020 he said words to the effect that everyone’s jobs should be safe, as he was not in a position to make such a claim and at the time no one knew the full extent of the impact of Covid-19. Mr Nolan stated that he said words to the effect that the Respondent did not know what the future 2020 NRL season would look like, and the Respondent is a strong Club and it is the intention of the Respondent to do everything it needs to do to not lose any jobs. The evidence did not demonstrate that alternatives were reviewed, to avert the redundancy of the Applicant’s job.

[103] Mr Nolan said that on 27 March 2020 at 9:00 am, he called a team meeting. His evidence was that he knew the decision had been made to make seven positions redundant in his team, and agreed that he said words to the effect that the Respondent would be losing some good people that day.

Submissions of the Respondent

[104] In assessing whether to grant an extension of time, the following criteria were addressed:

Reasons for delay (section 394(3)(a))

[105] The Respondent’s representative submitted, that the Applicant’s submissions advanced two reasons for the delay in filing his application. The first being the information received by the Applicant regarding the engagement of Mr Ryan (the ‘new information reason’). The second delay from 16 June 2020 to the filing on 1 July 2020, being as a result of the Applicant engaging with his legal representatives and communicating with the Respondent (the ‘second delay’)

[106] Regarding the new information reason, the Respondent submitted that the Commission could not be satisfied that the new information caused the Applicant to hold a reasonable belief that his redundancy, at the time it occurred on 27 March 2020, was not genuine.

[107] It was submitted on behalf of the Respondent that the article of 13 June 2020, did not demonstrate that Mr Ryan would be employed by the Respondent in the Applicant’s previous role. The Respondent asserted that the role, is not the role that was formerly occupied by the Applicant. The Respondent claimed that the Mr Ryan’s services, have been engaged through Ryno TT, an independent consultancy of which Mr Ryan is the representative. The Respondent submitted the engagement is on a short-term contract basis and on two days per week.

[108] The Respondent submitted that the email sent by Ms Drinkwater to the Applicant on 16 June 2020, advised the Applicant, that the Respondent was utilising Mr Ryan’s services on a short-term basis and that this was not dissimilar to any other arrangement the Respondent has in place during the season to utilise external services.

[109] With regard to the second delay, the Respondent noted that the Applicant engaged lawyers on 16 June 2020. The Respondent submitted that given the Applicant was 60 days out of time, the Applicant should have immediately lodged the Application. The Respondent submitted that the Applicant could have continued to resolve the matter with the Respondent once the Application was lodged. The Respondent submitted that there was not an acceptable reason for the delay, in light of the application being 60 days out of time.

Whether the Applicant first became aware of the dismissal after it had taken effect (section 394(3)(b)) and any action taken by the Applicant to dispute the dismissal (section 394(3)(c))

[110] The Respondent noted that the Applicant was notified in writing on 27 March 2020 that his employment would be terminated effective that day. The Respondent submitted that it had been in communication with the Applicant, in relation to the redundancy program prior to the termination taking effect, including by letter from the Chief Executive Officer dated 24 March 2020. These pieces of correspondence could not e considered as specific communication indicating that the Applicant’s job was being considered for redundancy.

[111] The Respondent argued that it was not until 13 June 2020 (the website article) that the Applicant made attempts to contact the Respondent to dispute the dismissal. The Respondent accepted that from 18 June 2020 to 26 June 2020, the Applicant attempted to resolve the matter directly with the Respondent.

Prejudice to the employer (section 394(3)(d))

[112] The Respondent submitted that, if the application was accepted, it would suffer prejudice as a result of the 74 day delay. The Respondent argued that it would be unfairly prejudiced due to the cost in defending what it asserted was a baseless application at law.

[113] The Respondent pointed to a number of decisions, which it said supported the notion that a 74 day delay will cause prejudice to the Respondent, namely Scott v Davies Automotive Equipment Pty Ltd; 11 Siu v Chinese Community Social Services Centre Inc;12 and Price v CDC Ballarat Pty Ltd13and Balagan v Australian Leisure and Hospitality Group Pty Ltd.14.

Merits of the Application (section 394(3)(e))

[114] The Respondent submitted that they had a valid reason to make the Applicant’s job redundant and that the decision to make the job redundant was not otherwise harsh, unjust or unreasonable.

[115] The Respondent stated that the role, responsibilities, duration and remuneration of Mr Ryan’s engagement differed from the Applicant's previous role. In particular, that Mr Ryan was engaged as a contractor. Therefore, the Respondent submitted that the application has limited prospects of success, because it is unlikely to overcome the genuine redundancy jurisdictional objection.

[116] Furthermore, it was argued that the Applicant’s lawyers had a duty to raise the applicable Modern Award, which set out the Respondent’s obligations for consultation and/or redeployment arose, and this had not been done.

Fairness as between the Applicant and other persons in a similar position (section 394(3)(f))

[117] The Respondent submitted that the matter does not involve any other employee in a similar position. As such, it was submitted that no weight should be given to this element.

CONSIDERATION

[118] As previously set out, the Act requires that an unfair dismissal application made pursuant to s.394, must be filed within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3) of the Act. S.394(3) sets out the circumstances in which the Commission, if satisfied there are ‘exceptional circumstances’, may allow a further period for the filing of the Application.

[119] In assessing the period of the delay in filing, the Full Bench decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (‘Stogiannidis’) 15 rejected an earlier Full Bench, in the decision of Cheval Properties Pty Ltd v Smithers16 which had concluded that in order for ‘exceptional circumstances’ to be established, an Applicant must provide reasons for the whole of the period of delay in filing. In Stogiannidis the Full Bench stated:

‘[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.’

[120] The meaning of ‘exceptional circumstances’ was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty) 17 as follows:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”

Section 394 (3)

[121] All of the matters for the period after the date of termination, until the lodgement of the application in the Commission, have been considered. In accordance with s.394(3) the Commission must be satisfied that ‘exceptional circumstances’ exist, taking into account the following criteria in s.394(3):

s.394(3)(a) - the reason for the delay

[122] It was submitted on behalf of the Applicant that up until 13 June 2020, it was not possible for him to be aware that the redundancy at law, was an unfair dismissal, as the redundancy was not genuine. The meaning of ‘genuine redundancy’ is set out in s.389, and is considered under the merits of the application.

[123] The Respondent terminated the Applicant's employment by way of purported redundancy on 27 March 2020. Between then and until 13 June 2020, the Applicant was under the reasonable belief that his termination was one of genuine redundancy. It was argued on behalf of the Applicant, that he was unaware of any fact that would have caused a reasonable person, in his position, to believe otherwise or to have a suspicion as to the Respondent's position regarding the purported redundancy. The Applicant argued that this subsequently changed on or about 13 June 2020.

[124] On or about 13 June 2020, the Applicant first became aware that Mr Ryan was employed by the Respondent, in the Applicant's role, namely as defensive coach/new skills coach, comprising substantially the same roles as he had performed. The Applicant’s representative argued that even then, the Respondent sought to disguise the true nature of Mr Ryan's new role at the Club by naming him as "Skills Coach", despite Mr Ryan fulfilling the same role or essentially providing the same services, that the Applicant had performed. It was contended that Mr Ryan's appointment was a direct replacement of the Applicant’s role.

[125] As soon as the Applicant was made aware of Mr Ryan's appointment to the Applicant's purportedly redundant position, the Applicant texted the General Manager of the Respondent and emailed the Respondent's Human Resources Manager, questioning the genuineness of his redundancy.

[126] By way of email on 16 June 2020, the Respondent confirmed that Mr Ryan had been employed on a short-term, contract basis, working 2 days per week and at games.

[127] The Applicant’s representative submitted that the new, plausible information first available to the Applicant on 13 June 2020, reasonably led him to a conclusion that his redundancy was not genuine, as his role was now being performed by Mr Ryan.

[128] Between 16 June 2020 and 24 June 2020, the Applicant attempted to resolve the matter with the Respondent at first instance. The Respondent agreed that 8 days were occupied after parties were endeavouring to resolve the matter. The application was 74 days out of time, filed 18 days after the Applicant became aware of Mr Ryan’s engagement.

[129] The 21 day timeframe is set to provide certainty between the parties.

[130] This matter does not weigh in the Applicant’s favour, as the statutory timeframe for filing is 21 days. There was a lengthy period of delay after the dismissal (77 days) and some further delay after the Applicant became aware on 13 June of the Mr Ryan’s appointment and contracted solicitors.

s.394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[131] It is not in dispute, that the Applicant first became aware of the dismissal on 27 March 2020, when he was notified of it and it became effective the same day.

[132] This is considered to be a neutral factor in assessing the matter.

s.394(3)(c) - any action taken by the person to dispute the dismissal

[133] In this regard, action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 18

[134] The Applicant, following his dismissal, contacted the Respondent on several occasions seeking alternative work that he could perform for the Respondent, including by email on 15 May 2020. Later he contacted the employer when he learnt of Mr Ryan’s engagement, with the Respondent. The Applicant and his legal representative then held discussions with the employer, to resolve the matter. He also undertook a media interview.

[135] Prior to 13 June there was no direct action to dispute the termination. The redundancy was formally disputed when the application was filed, after the Applicant was informed of Mr Ryan’s engagement. This criteria does not work in the Applicant’s favour, as no action was taken to dispute the termination on the 27^thMarch and it was not until 18 days after the new information was known that the application was filed.

s.394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[136] Prejudice to the employer will go against granting an extension of time. However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”. 19

[137] In this case, the length of the delay in filing was 74 days from the expiration of the 21 days and 18 days after learning of Mr Ryan’s engagement.

[138] The Applicant submitted that to his knowledge, the Respondent would not suffer any prejudice if the extension of time for his Application is granted, and it was submitted that the length of delay was not significant enough to give rise to a general presumption of prejudice.

[139] The Respondent argued that it would suffer prejudice as a result of the lengthy delay and that this prejudice was compounded by the Covid-19 pandemic. The Respondent also set out, that given Mr Seibold was now located interstate, and he would be required as a witness, that this would also prejudice the Respondent.

[140] It is not considered that this provides any prejudice to the Respondent, as the Commission is regularly able to undertake proceedings and receive evidence remotely. This criteria weighs in favour of the Applicant.

s.394(3)(e) - the merits of the application

[141] In the matter of Kornicki v Telstra-Network Technology Group 20 the Commission considered the principles applicable to the exercise of the discretion, to extend time under (the then) s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 21

[142] In this case, a significant portion of the submissions and evidence of the parties focused on whether it was a genuine redundancy. As such, I consider the assessment of the merits in this decision is appropriate, acknowledging that Commission did have detailed information in regard to s.389.

[143] I note that the extension of time issue is a threshold issue. I further note that, should the Applicant succeed in receiving a grant of an extension of time, he would additionally have to overcome the jurisdictional objection that the dismissal was a case of genuine redundancy as set out in s.389 of the Act. An amount of wages in lieu of notice, and a redundancy payment, have been paid to the Applicant. That would be taken into consideration also, if the matter of unfair dismissal was considered.

[144] The merits of this matter require a consideration of section 389, which provides:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[145] The criteria are considered below:

Was the Applicant’s job no longer required?

[146] The assessment of the redundancy decision must be taken at the time of the termination. The impact of Covid 19 on such an assessment was recently explored by Deputy President Sams in Maree O’Flaherty v Clear Dynamics Pty Ltd t/a Clear Dynamics, 22 relevantly stating:

“[85] It was common ground that the applicant was the only employee engaged as a Senior Business and Technology Consultant. The fact the applicant worked three days a week in that role, demonstrates that it was not a role requiring full time hours. It cannot be seriously disputed that the COVID-19 pandemic has resulted in enormous challenges for businesses in responding to Government measures to reduce the spread of the virus in Australian workplaces. These challenges have been rapid, unknown and unpredictable, but ultimately have seen virtually every sector of industry, adversely impacted; albeit to varying degrees.

[86] It seems to me perfectly understandable that Clear Dynamics was, like so many other businesses, sailing into unchartered and unknown waters, with the risk of major impacts or even closure – an ever present and real threat. In these circumstances, the decision in Wilson v Monizumi Pty Ltd ATF The Takezawa Trust T/A Shoji Australia [2020] FWC 2713 and the passage at [65] has particular resonance:

‘[65] There is no requirement for a business to wait until a possible financial crisis has actually manifested itself before it takes action to protect its’ business interests.’

[87] In any event, I accept the respondent’s evidence that at the time of the applicant’s dismissal, the business had experienced over a million dollars’ loss and other contracts were seriously at risk. Measures were later introduced to cushion the business from financial stress and ensure its future survival. These measures are not disputed by the applicant.

[88] It was also not in contention that the business took a deliberate decision to focus on contract delivery and finalising sales opportunities, rather than business development, which was the core function of the applicant’s role. Given the unpredictable circumstances facing the business, this was a perfectly legitimate business strategy.” 23

(emphasis added)

[147] Further as per the Full Bench decision Christina Adams v Blamey Community Group, 24 where, on the circumstances, the Full Bench observed in relation to a redundancy decision:

“[14] Insofar as Ms Adams’ appeal challenged the findings made by the Senior Deputy President in relation to 389(1)(a) it is necessary to state at the outset the consideration of whether the employer no longer required a person's job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer's decision to make a person's job redundant. It is not to the point that it may have open to the employer to make a different operational decision which may have allowed the relevant employee's job to be retained. As was stated in Low v Menzies Property Services Pty Ltd whether it was objectively fair or justifiable to decide to abolish a position is beside the point as long as the employer acted as it did because of changes in operational circumstances. What 389(1)(a) requires is for findings of facts be made as to whether firstly the employer has made a decision that the relevant employee's job is no longer required to be performed by anyone, and secondly whether the decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision, that is if the real reason - (emphasised) - for the decision did not genuinely relate to any change in operational requirements whatever the ostensible reason may have been then it will not be possible to make the second finding of fact. However, once the findings of fact are made the element of the genuine redundancy definition contained in 389(1)(a) is satisfied and no further inquiry is necessary.” 25

(emphasis added)

[148] The decision to make Mr Cross (and others) redundant, was made because of the operational requirements of the business, taken at a time when the impact of COVID-19 was considered to be significant and there was uncertainty as to whether the 2020 season would resume.

[149] In the context of COVID-19, in the decision of Samuel McClelland v Kamori Australia Pty Ltd T/A Lone Pine Koala Sanctuary, 26 Commissioner Simpson considered an Employer’s decision to make a job redundant, stating:

“[72] In advancing his argument, Mr McClelland submitted that rather than terminating his employment, Lone Pine ought to have considered temporarily standing him down without pay, and subsequently done all thing necessary to facilitate him receiving the JobKeeper payment. Mr Friedler made clear the reason Lone Pine made the decision to make positions redundant was based on its view that it would be in the order of three years before Australia would be in a position to allow the return of significant numbers of international visitors on which Lone Pine so heavily relies.

[73] In any event, as I indicated in the course of the hearing, for the purposes of the jurisdictional objection the Commission is concerned with whether the job was still required because of changes the employer has decided to make, and not with whether the employer’s decision to make certain operational changes is a good or bad decision.” 27

(emphasis added)

[150] The Respondent submitted, that in the present matter, on the evidence, there could be no doubt, that the employer made a decision that Mr Cross' job was not required, and while in retrospect it could be questioned, as to whether “that was a good or a bad decision”, and whether alternative options as set out above could have been exercised, that is not ultimately the test.

Did the Respondent comply with any obligation to consult about the redundancy

[151] The Applicant’s representative did not raise any Modern Award, setting out an obligation to consult. In terms of the obligation to consult about the redundancy, the consideration of redeployment does not need to arise from a Modern Award. Further to evidence by the Respondent’s representative, that ‘coaches’ employed by a Club, are effectively Award free. The Respondent asserted that there was not an obligation to consult with the Applicant regarding his redundancy arising from any Modern Award or industrial instrument.

[152] The obligation on an employer to consult with an employee about redundancy decision regularly arises when a Modern Award or Enterprise Agreement applies to an employee, and that Modern Award or Enterprise Agreement, contains requirements to consult about the redundancy decision.

[153] There was no specific identification by the Applicant’s representative of what consultation should have occurred in terms of compliance with an industrial instrument or otherwise that covered the coaching work of Mr Cross.

[154] The Respondent set out that the onus was borne on the Applicant to establish whether an obligation to consult arose in this matter and if the Applicant considered the redundancy decision was flawed originally, why the application was not originally taken. 28

[155] The Respondent submitted that upon a review of the possible Awards, none of the assessed Awards apply to a managerial level employee, occupying a role such as the Applicant’s. It was further argued that the lack of applicable Awards supported the Respondent’s submission that there was no obligation to consult, for the purposes of a definition for a genuine redundancy, and further, that the Applicant had failed to establish such an obligation, and that went directly to merit and suggests that the Applicant’s case is devoid of merit. A relevant assessment has been conducted below.

Miscellaneous Award 2020

[156] In relation the Miscellaneous Award 2020 potentially having coverage of the Applicant’s employment, the Fair Work Ombudsman website relevant states, “Sport or recreational activity instructors or coaches not covered by an industry award are covered by the Miscellaneous award. They’ll be classified based on their duties and qualifications.”

[157] However it is recognised that if the person in question is a senior coach, it is unlikely that they will fit into the classifications in clause 12, where the highest classification ‘has an advanced trade qualification … or is a sub-professional employee’. The Miscellaneous Award could cover an employee, if they are an assistant or junior coach, and not exempt due to their seniority. However, as set out in the Full Bench 4 yearly review of modern awards – Miscellaneous Award 2010decision, 29 (footnote -,) in accordance with s.143(7)(a) of the Act, the Miscellaneous Award must ‘not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards’.

[158] The Respondent addressed the incompatibility of the Miscellaneous Award covering the Applicant’s employment. Mr Humphry’s stated the following during the Hearing:

“The Miscellaneous Award, similarly, does not have any role to play. When one considers the history of award coverage for coaches and assistant coaches such as the applicant performed, and when one looks to the classification structure and definitions within that award, it clearly is inapplicable. It talks of people with trade qualifications, including people with advanced trade qualifications, carrying out duties requiring such qualifications or subprofessional employees.”

[159] In consideration of the above, the Applicant’s role of Assistant Coach for the Brisbane Broncos is not considered commensurate with an employee covered by the Miscellaneous Award 2020.

Registered and Licensed Clubs Award 2010

[160] In relation to the Registered and Licensed Clubs Award 2010, it is evident that his Award has no application in relation to sporting coaches. The Respondent’s legal representative also addressed the potential coverage of the Award in relation to the Applicant’s employment, stating:

“There is also the Registered and Licensed Clubs Award. The award - a review reveals that it covers classifications broadly associated with the provision of services in licensed clubs, customer service, cellar systems, operation of alcohol, gaming machines and the like. Not an award which has anything to do with the applicant.”

Sporting Organisations Award 2020

[161] The Respondent’s legal representative also addressed the potential coverage of the Sporting Organisations Award 2020 (SOA) in relation to the Applicant’s employment, stating:

“MR HUMPHREYS: The Sporting Organisations Award 2020. The coverage clause of that award appears at clause 4.

THE COMMISSIONER: Yes.

MR HUMPHREYS: It says:

This industry award covers national state and territory sporting organisations throughout Australia with respect to their employees, in the classifications in this award to the exclusion of any other modern award.

Then state and territory sporting organisations is immediately after that defined to mean:

The governing body for a sport at a state or territory level or the organisation conducting an elite level state or territory competition for a sport. In the case of a sport where governing bodies are split between metropolitan and non-metropolitan areas, the governing body for the non-metropolitan areas, e.g. country.

Now, it's very plain on the face of that coverage clause, that the award does not apply to clubs which are participants in a sport. It goes to the governing bodies of the sport, in short. But on any reading, it becomes immediately apparent that this award has no role to play for the respondent company.”

[162] The coverage clause of the SOA is expressed to cover ‘the governing body’ or ‘organisation conducting an elite level … sport’. However, it is recognised that the Applicant was employed by the Respondent club and not the NRL directly, as evidenced through the Applicant’s contract of employment, that was provided as part of the Applicant’s evidence. This suggests that the Applicant was not an employee covered by the SOA.

[163] In order that I could be satisfied that no Modern Award covered the Applicant’s employment, further research was undertaken to exhaust the issue, in relation to a relevant Modern Award coverage question.

[164] It is relevant to note that at the time that the SOA was being developed, as part of the Award Modernisation process, there was a Parties’ draft submitted by MEAA, that a new Sports Award should be made, with broader coverage than previously existed. It is recognised that this was, in part opposed by the NRL, in their submission of 27 April 2009 which stated ‘the NRL submits that its coaches should not be covered by any modern award, including the proposed modern Sports Award’. In subsequently making the modern award the Full Bench stated:

“[73] The exposure draft of the Sporting Organisations Award 2010 is based on the terms of the pre-reform award applying in the area – the National and State Sporting Organisations Award 2001 [AP811193CRA]. The draft covers only coaching, clerical and administrative classifications employed by national and state level sporting organisations. Some greater precision in the coverage clause may be desirable. Provision for fixed term coaching contracts is unnecessary and has not been included. The terms of the existing award have been modified in an attempt to accommodate the requirements of the NES. We refer in particular to the provisions of the draft which deal with extra annual leave for coaches. We assume that the provisions constitute supplementation of the NES and compensate for the lack of weekend penalties. Submissions are sought on whether such a provision is consistent with the NES.”

[165] In reviewing the bodies covered by the 2001 pre-reform award, no individual sporting teams are named in the schedule of respondents.

[166] On the basis of this analysis, it is evident that no Modern Award covered the Applicant’s employment, for the reasons set out above.

[167] In terms of a finding in accordance with s.389(1)(b), there was no deficiency in terms of consultation against the statutory test, as there was no obligation arising under a Modern Award to consult with the Applicant, regarding his redundancy.

That it would it have been reasonable for the Applicant to be redeployed?

[168] The Full Bench in Ulan Coal Mines Limited v Honeysett relevantly set out that whether the redeployment of an employee is considered reasonable, will depend on the circumstances that exist at the time of the dismissal. 30

[169] Ms Drinkwater addressed the possibility of redeploying the Applicant in her evidence, however, it was confirmed during the Hearing that no direct redeployment discussions were held with the Applicant prior to his redundancy. The relevant extract from Ms Drinkwater’s statement provided:

“At the time, I looked to redeploy the Applicant within the organisation (or its related entities), however, due to the economic impacts of COVID-19 and the suspension of all rugby league in Australia, the Respondent (and associated entities) did not have any vacancies or opportunities for redeployment. The Business Continuity Planning Position Review Spreadsheet detailed six vacancies across the Respondent's business (or associated entities) at the time.I did not view the Applicant to possess the skills or experience to fill the vacant roles. The roles included HR Advisor, Workshop Program Development Officer, Community Admin Assistant, Community & Government Programs Contracts Administrator and Beyond the Broncos Girls Academy Student Support Officers. Notwithstanding these vacancies, all roles were placed on a recruitment hold until approximately June 2020 so in any event did not represent redeployment opportunities for those persons who were made redundant in March 2020. Accordingly, the Respondent no longer required the Applicant's job to be performed by anyone.” 31 (emphasis added)

[170] As set out in the above extract, there was no evidence of any discussions with the Applicant regarding redeployment in some varied form of his Assistant Coaching role. Even though there was a clear deficiency, in terms of whether redeployment discussions were undertaken with the Applicant, it is clear that the dismissal, in accordance with s.389, was a genuine redundancy, in that Mr Ryan, being contracted on a short term basis, was not engaged in the Applicant’s full time employment position. Even

[171] On this basis, the application for the unfair dismissal, given the termination is a genuine redundancy, the unfair dismissal application is without merit.

[172] In terms of s.394(e) in relation to the merits of the matter, this factor weighs against the Applicant.

s.394(3)(f) - fairness as between the person and other persons in a similar position

[173] Neither party made particular submissions on other persons in a similar position to the Applicant.

[174] I consider this a neutral factor.

CONCLUSION

[175] The decision to make the Applicant’s job redundant was open to the Respondent and taken at a time of great uncertainty, due to the pandemic. The dismissal on the indicia of section 389 is considered a genuine redundancy. The engagement of Mr Ryan was on different, short-term, contractual terms, rather than on the same employment terms, as the Applicant’s job. The Employer’s evidence was that the duties were also different. It is clear that no one had been employed to undertake the Applicant’s job, as it was, prior to the redundancy. This significantly weighs against the grant of the extension of time.

[176] Whilst the Applicant is entitled to feel particularly aggrieved at the circumstances of his selection for redundancy, the Respondent was entitled, in the circumstances, to make the decision.

[177] In consideration of all the factors, I cannot be satisfied that the test of ‘exceptional circumstances’ is met, to provide for the grant of an extension of time.

[178] Accordingly, pursuant to the s.394(3) of the Act and the reasons set out in terms of the criteria, the overall circumstances, were not considered to be “exceptional circumstances”. The discretion to grant an extension of time is, therefore not exercised, to allow a further period to accept the Application.

[179] The Application made pursuant to s.394 is, therefore dismissed.

[180] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Paragraph [488] and [845] Transcript, 11 November 2020.

2 Christina Adams v Blamey Community Group[2016] FWCFB 7202

3 PN [1007] Transcript, 11 November 2020.

4 PN [368] to [374] Transcript, 11 November 2020.

5 [2018] FWC 2866

6 PN [73] Applicant’s witness statement of 21 August 2020.

7 [2004] FCAFC 126

8 [2010] FWA 674

9 Paragraphs 784 to 795 of the Transcript.

10 PN [500] to [501] Transcript, 11 November 2020.

11 [2016] FWC 4657 at [35]

12 [2016] FWC 4945 at [18]

13 [2020] FWC 3390 at [16]

14 [2020] FWC 2757 at [25]

15 [2018] FWCFB 901

16 (2010) 197 IR 403

17 [2011] FWAFB 975

18 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

19 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at pp. 299‒300

20 (1997) 858 IRCommA, 22 July 1997 per Ross VP, Watson SDP and Gay C

21 Garry Mellios v Qantas Airways Limited[2019] FWC 5029 at [48]

22 [2020] FWC 4564.

23 Ibid, at [85] – [88].

24 [2016] FWCFB 7202.

25 Ibid at [14].

26 [2020] FWC 3707.

27 Ibid at [70].

28 PN [937] to [939] Transcript, 11 November 2020.

29 [2020] FWCFB 754.

30 Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 at [26].

31 Paragraph [56] Witness Statement of Tain Drinkwater, dated 10 September 2020.

Mr Benjamin Cross v Brisbane Broncos Rugby League Club Limited

[2020] FWC 6259

20 NOVEMBER 2020

DECISION

INTRODUCTION

BACKGROUND

RELEVANT LEGISLATION

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

Submissions of the Respondent

CONSIDERATION

CONCLUSION